State v. McGuire, 109 Minn. 88, 122 N., W. 1120; Harmon v. Bolley, 187 Ind. 511, 2 A.L.R. 609, 120 N. E. 33.

A deepening of 1 foot for a part of a ditch's length beyond the original depth has been held a material deepening, so as to require notice and hearing of assessments to be levied for the cost.

State v. McGuire, 114 Minn. 281, 130 N. W. 1103.

The supreme court of Iowa has repeatedly held that land within a drainage district can be assessed for improvements made therein only for the actual (not theoretical) benefits accruing to the particular tracts of land within the district.

Re Jenison, 145 Iowa, 215, 123 N. W. 979; Re Johnson Drainage Dist. 141 | Iowa, 380, 118 N. W. 380; Rystad v. Drainage Dist. 157 Iowa, 85, 137 N. W. 1030; Thielen v. Wright County, 179 Iowa, 248, 160 N. W. 915.

The supreme court of Iowa has consistently held that, in passing on the equality of the assessment, the depth of the improvement, as affording outlet to lands, should be taken into consideration, and where a ditch has been cleaned out or deepened, consideration should be given to the adequacy of the original ditch prior to the cleaning out or the deepening, as furnishing an outlet for lands in making assessments therefor.

Harriman v. Franklin County, 169 Iowa, 324, 151 N. W. 468; Monson v. Boone & S. Counties, 167 Iowa, 473, 149 N. W. 624; Thielen v. Wright County, 179 Iowa, 248, 160 N. W. 915; Pollock v. Story County, 157 Iowa, 232, 138 N. W. 415; Obe v. Hamilton County, 169 Iowa, 449, 151 N. W. 453; Bibler v. Hamilton Gounty, 162 Iowa, 1, 142 N. W. 1017; O'Donnell v. Kossuth County, 184 Iowa, 1360, 169 N. W. 660.

The levying of a special assessment imposing a burden upon lands without a compensating advantage is not due process of law.

Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A.1918E, 190, 36 Sup. Ct. Rep. 204; Gast Realty & Invest. Co. v. Schneider Granite Co. 240 U. S. 55, 60 L. ed. 523, 36 Sup. Ct. Rep. 254; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56; Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187.

Messrs. F. C. Gilchrist and Robert Healy argued the cause, and, with Messrs. Frederick F. Faville and Maur ice J. Breen, filed a brief for defendants in error:

It is not true that the landowner is entitled to notice and hearing of every proposed assessment or levying of taxes. Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Embree v. Kansas City & L. B. Road Dist. 240 U. S. 242, 30 L. ed. 624, 36 Sup. Ct. Rep. 317.

Tax statutes should be liberally construed, and tax proceedings will not be declared lacking in due process of law by reason of enforced collection of taxes merely because it may, in individual cases, work hardships and unequal burdens.

King v. Mullins, 171 U. S. 404, 43 L. ed. 214, 18 Sup. Ct. Rep. 925; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658; Hodge v. Muscatine Co. 196 U. S. 276, 49 L. ed. 477, 25 Sup. Ct. Rep. 237; Wurtz v. Hoagland, 114 U. S. 615, 29 L. ed. 232, 5 Sup. Ct. Rep. 1091; English v. Wilmington, 2 Marv. (Del.) 63, 37 Atl. 163; Gillette v. Denver, 21 Fed. 823; State ex rel. Brown v. Wilson, 216 Mo. 215, 115 S. W. 549; Stone v. Little Yellow Drainage Dist. 118 Wis. 388, 95 N. W. 405; Phillip Wagner v. Leser, 239 U. S. 207, 60 L. ed. 230, 36 Sup. Ct. Rep. 66; Spencer v. Merchant, 125 U. S. 345, 31 L ed. 763, 8 Sup. Ct. Rep. 921; French v. Barber Asphalt Paving Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 631; Yeomans v. Riddle, 84 Iowa, 147, 50 N. W. 886.

Mr. Justice Clarke delivered the opinion of the court:

Conformably to the statutes of the state, Drainage District No. 29 was organized in Pocahontas county, Iowa, in 1907, and a system of drainage, regularly planned, adopted, and constructed, was completed in 1909. An assessment to pay for this improvement was imposed upon the lands within the district in proportion to the benefits which each tract would derive from it.

Two years later, in 1911, parts of the ditches having become so filled up as to impair the usefulness of the system, the county board of supervisors adopted a resolution declaring that it was expedient that the drainage [121] improvement should be "reopened, cleaned, and otherwise repaired" for the better service of the land tributary to it, and to that end a contract was let to "deepen, clean, reopen, and repair" the ditches in the parts and in a manner specified. An assessment to pay for this reopening, cleaning, and repairing was made upon the lands in the district in the same proportion to henefits as that made to

pay for the original construction, and the controversy in this case is as to the constitutionality of the statute under which this assessment was levied upon the lands of the plaintiffs in error.

The state statutes (Supplement to the Code of Iowa, 1913, chap. 2-A) committed to the board of supervisors of the county, the power to establish drainage districts, to adopt systems of drainage, to determine the extent of any damage which might be caused to lands thereby, and to make assessment on the lands in the district, in proportion to benefits, to pay for the improvement.

It will be noted that the section thus quoted does not require that notice shall be given to landowners of such intended enlarging, reopening, etc., of the drainage system as is provided for therein, and that no provision is made for a hearing with respect thereto, at which objections may be made either to the doing of the work or to the assessment to pay for it; and the contention of the plaintiffs in error is that the failure to provide for such notice and hearing renders the section unconstitutional for the reason that, if enforced, it would deprive them of their property without due process of law.

To this contention of invalidity it is replied that the section assailed is a legislative determination of the amount which should be assessed upon the lands of plaintiffs in error to pay for the pres

Elaborate provision is made for notice to all owners of land within a proposed drainage district, of the application for the establishment of it, of the time for hearing claims for damages likely to be caused by the construction of the drainage system, and of the time when objec-ervation and repair of the drainage tions may be made to the assessment in proportion to benefits. From the determination of the board with respect to each of these, a right of appeal to the state district court is given.

It is admitted that all of the requisite action was taken to establish the system of drainage involved and for making the assessment upon the benefited lands, including those of the plaintiffs in error, to pay for the original work done, and that sufficient notice thereof to satisfy all constitutional requirements was given to all concerned.

The action in this case was taken under § 1989-a21 of the Iowa Code (Supp. 1913), which provides that [122] after any drainage district shall have been established and the improvement constructed (as in this case):

66

or

system, and that, therefore, due process of law did not require a new notice and opportunity to be heard before the work was determined upon or the assessment [123] made,-this under authority of decisions of this court, extending from Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921, to Branson v. Bush, 251 U. S. 182, 189, 64 L. ed. 215, 220, 40 Sup. Ct. Rep. 113.

The supreme court of Iowa held the statute and assessment both valid, and a writ of error brings the case here for

review.

The contention that a new notice and hearing were not required in this case by the due process provision of the 14th Amendment is a sound one. We are dealing with the taxing power of the state of Iowa, exerted through the fathe same shall at all times miliar agency of a regularly organized be under the control and supervision of drainage district, which, it is admitted, the board of supervisors, and it shall be properly included, and by the system of the duty of the board to keep the same drainage adopted benefited, the lands of in repair, and for that purpose they may the plaintiffs in error. It is admitted cause the same to be enlarged, reopened, also that their lands were lawfully asdeepened, widened, straightened, sessed to pay for the original drainage lengthened for a better outlet." construction in the same proportion to "The cost of such repairs or change benefits as that which was applied in shall be paid by the board from the this case to the cost of the improvedrainage fund of said . . . drainage ments and repairs. Thus, Myles Salt Co. district, or by assessing and levying v. Iberia & St. M. Drainage Dist. 239 the cost of such change or repair upon the lands in the same proportion that the original expenses and cost of construction were levied and assessed, except where additional right of way is required or additional lands affected there by, in either of which cases the board shall proceed," giving notice and hearing as is otherwise provided.

U. S. 478, 60 L. ed. 392, L.R.A.1918E, 90, 36 Sup. Ct. Rep. 204, and Gast Realty & Invest. Co. v. Schneider Granite Co. 240 U. S. 55, 60 L. ed. 523, 36 Sup. Ct. Rep. 254, which are much relied upon, are plainly inapplicable.

The provision of the section assailed, that the cost of repairs shall be assessed upon the lands of the district in the

[124] The only possible source of ohjection remaining is the committing to the board of supervisors the power to determine, without notice and hearing, result. when repairs are necessary and the extent of them. But these are details of

state administration with which the Fed- CHARLES F. HUNT, Executor of the eral authority will not interfere, except, possibly, to prevent confiscation spoliation, of which there is no sugges tion in this case. Davidson v. New Orleans, 96 U. S. 97, 106, 24 L. ed. 616, 620, and cases cited, supra.

service, as well as the service under the Mathesius v. Brooklyn Heights R. Co. original contract, was performed by a sub- 96 Fed. 792; Dugue v. Levy, 120 La. 370, contractor, where the government, while 45 So. 280. recognizing the latter as subcontractor, did not have, and did not by implication recognize, any contractual relations with him, but consistently retained its contract relation with the original contractor, and no copy of the subcontract was filed with the Postoflice Department, as is required by statute, the subcontractor certifying to the Postmaster General that he did not intend that the contract should be filed for recog nition by the Department, or as a lien against the pay of the contractor.

Assistant Attorney General Lovett argued the cause, and Special Assistants to the Attorney General Davis and Stewart and Mr. William D. Harris filed a brief for appellee:

The right of action, if any existed, was not in Weighel.

Tyler v. Judges of Ct. of Registration, 179 U. S. 405, 407, 45 L. ed. 252, 253, 21 Sup. Ct. Rep. 206.

The terms of the contract and advertisement clearly cover the service required as new or additional or changed service, and which the contractor was Decided No- obliged to perform without additional compensation.

Slavens v. United States, 38 Ct. Cl.

APPEAL from the Court of Claims 574; Proffit v. United States, 42 Ct. Cl.

not mention such service, [127] but, on The finding of the court of claims is the contrary, before he made his bid, that while the government had notice Weighel was notified by the postmaster that Weighel had sublet his contract, at Chicago, who was authorized by the and while in practice it recognized Postmaster General to give information Travis as a subcontractor, yet no copy to bidders, that the successful bidder of the subcontract was filed with the would not be required to perform such Department, as is provided for in [May service. 4, 1882] 22 Stat. at L. chap. 116, pp. 53, On November 14, 1895, about four 54, Comp. Stat. §§ 7455, 7213, 8 Fed. months after Travis, as subcontractor, Stat. Anno. 2d ed. pp. 176, 58, but that, entered upon the performance of the on the contrary, Travis certified to the contract, and again on May 12, 1896, Postmaster General that he did not inand on February 27, 1897, and May 3, tend that "the contract should be filed 1897, the Postmaster General issued for recognition by the Department, or orders requiring the contractor to per- as a lien against the pay of the conform specified mail service to and from tractor." Thus, while the government street cars in Chicago. The government accepted service from Travis, it consistclaimed that this new service was with- ently retained its contract relation with in the scope of Weighel's contract, but Weighel during the entire four years. he claimed that it was not, and, per- Three of the four orders for the extra forming it under protest, he notified the service were addressed to Weighel, and government that compensation therefor would be demanded. Travis performed all of the extra service for Weighel, and the court of claims found that he was obliged to employ twenty-four men, four double vans and seven single wagons to perform the service which had previously been performed by four drivers and four single wagons, and that the reasonable value of the extra service imposed by the orders of the Postmaster General was $52,327.60.

This suit, brought by Weighel to recover the fair value of the extra service rendered, has, since his death, been prosecuted by his executor.

the second of the four, which was addressed to Travis, probably by inadvertence, contained, as each of the others did, a requirement that the "contractor" should perform the service designated without additional pay, "in accordance with the terms of his contract." All payments were made to Weighel, and it was from him that the protest came against being required to perform the extra service, and the notice that extra pay would be demanded for it. While Travis was called a subcontractor, he was treated by all concerned throughout the entire transaction as if he were (and he seems to have so regarded himself) a mere agent, performing for Weighel. The government did not have, and did not by any implication recognize, any

The court of claims decided that because Travis performed all of the extra service which was the subject of the suit, Weighel had no interest in the sub-contractual relations whatever with ject-matter of it, and dismissed the petition.

Travis, and if he had failed in performing it would not have had any right of We agree with the lower court that action against him, for the subletting the contention of the government can- of such a contract [129] was forbidden not be allowed, that the extra service by statute, except with the consent in rendered was within the paragraph of writing of the Postmaster General, which the contract providing that the contrac- was never given. (May 17, 1878, 20 tor is "to perform all new or additional Stat. at L. 62, chap. 107, § 2, Comp. or changed covered regulation wagon Stat. § 7452, 8 Fed. Stat. Anno. 2d ed. mail messenger, transfer, and mail sta- p. 171.) Weighel was the only person tion service that the Postmaster General legally bound to perform the original may order in the city of Chicago, Illi- contract; it was from him that the govnois, [128] during the contract term, ernment demanded the extra service, without additional compensation." This and under the facts found by the lower paragraph is in precisely the terms court the obligation to pay for that servquoted and considered in United States ice was to him, whether he performed it v. Utah, N. & C. Stage Co. 199 U. S. 414, personally or through another. The gov50 L. ed. 252, 26 Sup. Ct. Rep. 69, which ernment accepted performance of the on this point plainly rules the case be- extra service by Travis precisely as it fore us, and gives the appellant a right accepted performance by him of the obof action unless it is defeated by the fact ligation under the original contract, and that Travis, instead of Weighel, per- the law requires payment to Weighel for formed the service. the former as much as it required t